Allowed

K.Padmanabhan Nair v. Secretary,Corporation of Kozhikode

Kerala HC21 Nov 2016WP(C)/38220/2007

Case brief

AI extract

What is this about?

The Division Bench allowed the writ petition, setting aside the cancellation of a building permit and direction for demolition. The court held that mere prescription of land for acquisition without commenced proceedings does not freeze rights. The petitioner was directed to inspect the building and obtain an Occupancy Certificate within one month.

What did the court decide?

Ext.P3 & P4 set aside; petitioner to obtain Occupancy Certificate within one month ensuring compliance with sanctioned plan and KMBR.

K.Padmanabhan Nair Vs Secretary,Corporation of… — Municipal and Town Planning | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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MONDAY, THE 21ST DAY OF NOVEMBER 2016/30TH KARTHIKA, 1938

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WP(C).No. 38220 of 2007 (Y)

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PETITIONER:

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K.PADMANABHAN NAIR,

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VANDANA HOUSE, MAVOOR ROAD, KOZHIKODE - 673 002.

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BY ADV. SRI.MILLU DANDAPANI

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RESPONDENT(S):

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1. THE SECRETARY, CORPORATION OF KOZHIKODE, KOZHIKODE.

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2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT (M) DEPARTMENT, THIRUVANANTHAPURAM.

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3. THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM.

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R1 BY ADV. SRI.P.V.KUNHIKRISHNAN, SC BY ADV.SRI.K.D.BABU, SC R2 & R3 BY GOVT. PLEADER SMT.VINEETHA HARIRAJ

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 38220 of 2007 (Y)

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXHIBIT P1 :	PHOTOCOPY OF ORDER, G.O.(RT) NO.4824/2005/LSGD DATED 1.12.2005 OF THE 2ND RESPONDENT ISSUED TO THE PETITIONER.
EXHIBIT P2 :	PHOTOCOPY OF BUILDING PERMIT ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT VIDE NO.E1/6314/05 DATED 27.2.2006.
EXHIBIT P3 :	PHOTOCOPY OF ORDER NO.E-4/6314/05 DATED 18.12.2007 OF THE 1ST RESPONDENT ISSUED TO THE PETITIONER.
EXHIBIT P4 :	PHOTOCOPY OF ORDER NO.E-4/6314/05 DATED 18.12.2007 OF THE 1ST RESPONDENT ISSUED TO THE PETITIONER.
EXHIBIT P5 :	PHOTOCOPY OF ORDER G.O.(MS) NO.201/2007/LSGD. DATED 1.9.2007 OF THE 2ND RESPONDENT.
EXHIBIT P6 :	PHOTOGRAPHS REFERRED TO IN THE WRIT PETITION.
EXHIBIT P7 :	PHOTOCOPY OF JUDGMENT DATED 7.10.2005 OF THIS HONOURABLE COURT RENDERED IN OP.NO.8740/1997 S.

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RESPONDENTS' EXHIBITS: NIL

//TRUE COPY//

P.S. TO JUDGE

mbr/

K. VINOD CHANDRAN, J.

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---------------------------------W.P(C). No.38220 of 2007-Y

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---------------------------------Dated this the 21^st day of November, 2016

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JUDGMENT

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The petitioner, who had a three-storied residential complex, applied for an additional construction to be made in the property belonging to him adjacent to the existing residential building. The petitioner's application is said to have been rejected at the first instance. The petitioner filed an appeal before the Government, in which exemption was granted as per Ext.P1. On the basis of Ext.P1, the petitioner's building permit application was reconsidered and Ext.P2

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W.P.(C) No.38220 of 2007

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permit was issued. The petitioner constructed

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the building as permitted by the Corporation.

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The petitioner was then issued with

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Ext.P3, canceling the permit and Ext.P4, directing demolition within three weeks. The orders of cancellation and demolition issued were pursuant to Ext.P5 G.O.[MS] No.201/2007/ LSGD dated 01.09.2007. Ext.P5 G.O. was issued in the wake of a judgment of the Division Bench of this Court in O.P. No.8740 of 1997, produced as Ext.P7. The Division Bench in Ext.P7 found that there can be no individual exemption granted under the Town Planning Act, 1108.

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Admittedly, the petitioner was granted an exemption and issued with a permit based on which the construction was carried out. The construction was hence in accordance with the

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W.P.(C) No.38220 of 2007

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Kerala Municipality Building Rules, 1999 [KMBR]. The objection raised is of the Town Planning Scheme having granted exemption. A reading of the Counter Affidavit of the Corporation itself shows that the Town Planning Scheme marked the area as one required for acquisition for planned Residential Development and Rehabilitation of evicted persons.

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The writ petition is of the year 2007. Acquisition proceedings having not commenced even now, the mere prescription of an area as required for acquisition cannot restrict the land owners from enjoyment of the properties. Unless acquisition proceedings are taken on a war-footing and the land owners granted compensation in accordance with law, there could be no freezing of rights of a land owner

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W.P.(C) No.38220 of 2007

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indefinitely. Even now, there could be no difficulty in acquiring the land, but the improvements too would have to be granted compensation, if such acquisition is proceeded with.

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In such circumstances, this Court does not find any reason to sustain the cancellation ordered by the Corporation. Exts.P3 & P4 are set aside. The petitioner was granted interim stay of demolition as early as on 24.11.2007. In such circumstance, the petitioner's building shall be inspected and Occupancy Certificate granted, if not already granted, within a period of one month from the date of receipt of a certified copy of this judgment, de hors any

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Town Planning Scheme, but ensuring that the building is constructed in accordance with the

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W.P.(C) No.38220 of 2007

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sanctioned plan and KMBR. The position is further made clear by a Division Bench of this Court in Writ Appeal No.559 of 2016 dated 26.10.2016.

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The writ Petition is allowed. No Costs.

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Sd/-

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